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CRS-3

Current American Extraterritorial Criminal Jurisdiction. Congress hasexpressly provided for the extraterritorial application of federal criminal law most oftenby proscribing conduct that occurs "within the special maritime and territorialjurisdictionof the United States." It supplies an explicit basis for the extraterritorial application ofvarious federal criminal laws relating to: (1) air travel (special aircraft jurisdiction of theUnited States); (2) customs matters (customs waters of the U.S.); (3) U.S. spacecraft inflight; (4) overseas federal facilities and overseas residences of federal employees; (5)members of U.S. armed forces overseas and those accompanying them; and (6) overseashuman trafficking and sex offenses by federal employees, U.S. military personnel, orthose accompanying them.The obligations and principles of various international treaties, conventions, oragreements to which the United States is a party supply a second common ground forexplicit extraterritorial application of federal criminal statutes. Members of the final classof explicit extraterritorial federal criminal statutes either cryptically declare that theirprovisions are to apply overseas or describe a series of jurisdictional circumstances underwhich their provisions have extraterritorial application, not infrequently involving theforeign commerce of the United States in conjunction with other factors.The federal courts have found extraterritorial application implicit in instances thepurpose for enactment might otherwise be frustrated. Thus they have held that Americanextraterritorial criminal jurisdiction includes a wide range of statutes designed to protectfederal officers, employees and property, to prevent smuggling and to deter theobstruction or corruption of the overseas activities of federal departments and agencies.A logical extension would be to conclude that statutes enacted to prevent and punish thetheft of federal property apply worldwide. And there seems to be no obvious reason whystatutes protecting the United States from intentional deprivation of its property bydestruction should be treated differently than those where the loss is attributable to theft.Investigation and ProsecutionUsing the terminology of international law in which countries are referred to asstates, the Restatement observes, "It is universally recognized, as a corollary of statesovereignty, that officials of one state may not exercise their functions in the territory ofanother state without the latter's consent. Thus, while a state may take certain measuresof nonjudicial enforcement against a person in another state, ... its law enforcementofficers cannot arrest him in another state, and can engage in criminal investigation in thatstate only with that state's consent." Failure to comply can result in strong diplomaticprotests, liability for reparations, and other remedial repercussions, to say nothing of thepossible criminal prosecution of offending foreign investigators. Consequently,investigations within another country of extraterritorial federal crimes without the consentor at least acquiescence of the host country are extremely rare.Mutual Legal Assistance Treaties and Agreements. Congress has endorseddiplomatic efforts to increase multinational cooperative law enforcement activities. TheUnited States has over fifty mutual legal assistance treaties in force. They ordinarilyprovide similar clauses, with some variations, for locating and identifying persons anditems; service of process; executing search warrants; taking witness depositions;persuading foreign nationals to come to the United States voluntarily to present evidencehere, and forfeiture related seizures.